Patna High Court
Raju PaswanversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PRABHAT KUMAR SINGH
Holding
The conviction and sentence under Sections 399 and 402 IPC are set aside due to lack of evidence and procedural lapses, resulting in acquittal of the appellants.
Summary
The appellants were convicted by the Additional Sessions Judge, Sasaram, for offences under Sections 399 and 402 of the Indian Penal Code based on a police raid that recovered a pistol, cartridges and a knife. They appealed, arguing that the prosecution failed to examine the investigating officer, did not produce the seized weapons or any ballistic report, and did not call the witnesses listed on the seizure sheet, nor obtain the required sanction under the Arms Act. The High Court found that the prosecution’s evidence was insufficient to prove that the accused had assembled for the purpose of dacoity or robbery and noted the procedural deficiencies concerning the Arms Act charges. Consequently, the Court set aside the conviction and sentence, acquitted the appellants of all charges, and discharged them from bail bond liability. The appeals were therefore allowed.
Issues considered
- Whether the prosecution evidence was sufficient to prove the commission of offences under Sections 399 and 402 IPC.
- Whether the failure to examine the investigating officer and seizure‑list witnesses vitiates the trial.
- Whether the non‑production of seized arms and lack of ballistic expert opinion defeats the prosecution case.
- Whether the absence of a sanction from the District Magistrate bars prosecution under the Arms Act.
Legislation cited
- Arms Act — s. 25(1-B)A, 26, 35
- Indian Penal Code — s. 399, 402
Subjects
- dacoity
- robbery
- evidence
- acquittal
- Arms Act
- sanction
- seizure of weapons
- ballistic expert
- procedural lapse
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.67 of 2016
Arising Out of PS. Case No.-394 Year-2004 Thana- DEHRI TOWN District- Rohtas
======================================================
Mantoo @ Binod Yadav S/o Janeshwar Singh, Resident of Village - Munshi
Bigha, P.S. - Barun, District - Aurangabad.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 83 of 2016
Arising Out of PS. Case No.-394 Year-2004 Thana- DEHRI TOWN District- Rohtas
======================================================
Ramesh Paswan Son of Nanhak Paswan, Resident of Vill. - Fazalganj, P.S. -
Sasaram, District - Rohtas.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 178 of 2016
Arising Out of PS. Case No.-394 Year-2004 Thana- DEHRI TOWN District- Rohtas
======================================================
Raju Paswan Son of Muni Lal Paswan Resident of Village- Majhiyaon, Po
Panch Pokhar, PS Baghaila Nokha, District Rohtas.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 67 of 2016)
For the Appellants : Mr. Krishna Pd. Singh, Sr. Advocate
Mr. Bhaskar Shankar, Advocate
For the State : Mr. S.A. Ahmad, APP
(In CRIMINAL APPEAL (SJ) No. 83 of 2016)
For the Appellant : Mr. Ashok Kumar Pandey, Advocate
For the State : Ms. Abha Singh, APP
(In CRIMINAL APPEAL (SJ) No. 178 of 2016)
For the Appellant : Mr. Subash Kumar, Advocate
For the State : Mr. Binod Bihari Singh, APP
======================================================
Patna High Court CR. APP (SJ) No.67 of 2016(6) dt.30-03-2026
2/8
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL ORDER
6 30-03-2026 Heard learned senior counsel appearing for the
appellants and learned Additional Public Prosecutors appearing
for the State.
2. Since all these three appeals arise out of the same
P.S. case and same sessions trial i.e. Sessions Trial No. 200 of
2007, they are being taken up together and disposed of by this
common order.
3. These three appeals have been filed challenging the
judgment of conviction and order of sentence 21.01.2016 passed
by the learned IXth Additional Sessions Judge, Sasaram in
Sessions Trial No. 200 of 2007 arising out of Dehri P.S. Case
No. 394 of 2004 whereby and whereunder these three appellants
have been convicted for committing offence under Sections 399
and 402 of the Indian Penal Code and have been sentenced to
undergo rigorous imprisonment for seven years with a fine of
Rs. 20,000/- each under Section 399 of the Indian Penal Code,
seven years of rigorous imprisonment with a fine of Rs.
20,000/- each under Section 402 of the Indian Penal Code and in
case of default of fine, to further undergo rigorous imprisonment
for six months. Both sentences have been directed to run
concurrently.
Patna High Court CR. APP (SJ) No.67 of 2016(6) dt.30-03-2026
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4. The prosecution case, in brief, is that on
03.12.2004, informant, namely Yugesh Chandra, who is a Police
Inspector, received secret information that some criminals are
planning to loot a Kudra based businessman while he would be
returning from Dhanbad to Kudra near Jamhuar Bridge. Upon
receiving such information, the informant informed the S.D.P.O.
who in turn, directed the informant and other police officials to
nab the accused. As per directions, a raiding team was prepared
and the same headed towards Jamhuar Bridge and found some
persons hiding in the bushes. Upon seeing the police party, the
culprits started fleeing away however, three of them were
nabbed who disclosed their names as Raju Paswan (appellant),
Ramesh Paswan (appellant) and Upendra Paswan, since
deceased. The apprehended accused persons also revealed the
names of other two persons, namely Mantoo (appellant) and
Raja Mishra, who managed to flee away from the place of
occurrence. Upon search, one loaded country made pistol and
two live cartridges were recovered from Raju Paswan and a
knife was recovered from Ramesh Paswan. The weapons were
seized, the accused persons were arrested and brought to the
police station.
5. In this case, the arrest and seizure took place on
Patna High Court CR. APP (SJ) No.67 of 2016(6) dt.30-03-2026
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03.12.2004 at about 9 PM, accordingly, an F.I.R. being Dehri
P.S. Case No. 394 of 2004 was instituted on 04.12.2004 for the
offences punishable under Sections 399 and 402 of the Indian
Penal Code and Sections 25(1-B)A, 26 and 35 of the Arms Act.
Thereafter, charge-sheet was submitted under Sections 399 and
402 of the Indian Penal Code and Sections 25(1-B)A, 26 and 35
of the Arms Act against all five accused persons and thereafter,
cognizance was taken on 31.01.2005, case was committed on
11.04.2007 and charges were framed on 03.07.2007 under the
same sections as in the charge-sheet. However, the prosecution
did not prove the sanction which was needed and required to be
given by the D.M. for prosecution under the Arms Act and
hence, the accused were acquitted from the charges framed
under the Arms Act.
6. In order to bring home guilt of the accused person,
the prosecution has examined altogether two witnesses. P.W. 1,
namely Yugesh Chandra, is informant of this case and member
of the raiding team and P.W. 2, namely Devlal Dusadh, who is
also member of the raiding team. The prosecution also
submitted three exhibits. Exhibit 1 is the seizure list, Exhibit 2
is the self-statement of the informant/P.W. 1 and Exhibit 3 is the
formal F.I.R.. On the other hand, the defence has not produced
Patna High Court CR. APP (SJ) No.67 of 2016(6) dt.30-03-2026
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any oral or documentary evidence.
7. After hearing the parties, the learned trial court
convicted these appellants and sentenced them as indicated in
the opening paragraph of this order.
8. Learned senior counsel appearing for the appellants
assails the order of conviction and sentence on multiple
grounds. He contends that in this case, the Investigating Officer
has not been examined by the prosecution. The prosecution has
only examined two witnesses and both of them are members of
the raiding party and no independent witness has been examined
by the prosecution. The so-called recovered arms and
ammunition were neither produced before the learned trial court
nor any ballistic opinion was taken from any ballistic expert. He
further contends that the seizure list contains signature of two
independent witnesses, namely Saryu Choudhary and
Roopchand Singh, however, neither the two seizure list
witnesses were examined nor any explanation has been given on
behalf of the prosecution about their non-examination. The
prosecution also failed to prove any prior sanction from the
District Magistrate and thus, the learned trial court has acquitted
the accused persons of the charges under the Arms Act and
hence, the allegation that these appellants, along with other
Patna High Court CR. APP (SJ) No.67 of 2016(6) dt.30-03-2026
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accused persons, had assembled at the place of occurrence for
committing dacoity cannot be sustained. Mere assembly of five
persons at about 9 PM in the night does not prove that they had
assembled for any wrongful purpose. Thus, it is a case of no
evidence and prosecution has failed to prove the case beyond
reasonable doubt and hence, the appellants are fit to be
acquitted. In support of his contentions, learned senior counsel
for the appellants has placed heavy reliance upon judgment of
the Hon’ble Apex Court passed in the case of Chaturi Yadav
versus State of Bihar reported in AIR 1979 SC 1412 and
judgment of this Hon’ble Court rendered in the case of Sulo
Thakur versus State of Bihar reported in PLJR 2006 (4) 190.
9. On the other hand, learned Additional Public
Prosecutors for the State have submitted that there is no need of
any interference in these appeals since the prosecution witnesses
have supported the corroborated the prosecution story and there
is no reason to differ with the findings of the learned trial court
and the judgment of conviction and order of sentence are
justified and legal.
10. From going through the rival submissions,
evidences and upon perusal of the records, this Court finds that
in this case, the Investigating Officer has not been examined by
Patna High Court CR. APP (SJ) No.67 of 2016(6) dt.30-03-2026
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the prosecution and therefore, this Court is bereft of all
objective evidence, which would have been required to prove
the place of occurrence as well as the manner of occurrence.
The prosecution has neither produced the seized arms and
ammunition before the learned trial court nor it has provided the
sanction required from the District Magistrate or examined the
seizure list witnesses or any ballistic expert. In absence of these
materials, the learned trial court has rightly acquitted these
appellants of the charges under the Arms Act. Moreover, there is
no evidence to show that the appellants had assembled for the
purpose of committing a dacoity or they had made any
preparation for committing the same. The mere fact that these
appellants, along with other accused persons, were found at a
lonely place at 9 PM does not, by itself, prove that the
appellants had assembled for the purpose of committing dacoity
or for making preparations to accomplish that object.
11. From the aforementioned reasons, the prosecution
has failed to bring home guilt of the accused persons beyond all
reasonable doubts and thus, I find that the impugned judgment
of conviction and order of sentence dated 21.01.2016 is difficult
to sustain.
12. In that view of the matter, the judgment of
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conviction and order of sentence dated 21.01.2016 passed by the
learned Additional Sessions Judge- IX, Sasaram in Sessions
Trial No. 200 of 2007 arising out of Dehri P.S. Case No. 394 of
2004 is hereby set aside.
13. Appellants are acquitted of all the charges and are
discharged from the liability of the bail bond in connection with
this case.
14. Accordingly, these appeals stand allowed.
15. Interlocutory application/s, if any, also stands
disposed off.
(Prabhat Kumar Singh, J)
shashank/-
U T
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